B-45646, NOVEMBER 24, 1944, 24 COMP. GEN. 410

B-45646: Nov 24, 1944

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HE ACTUALLY IS REEMPLOYED. THE EMPLOYEE IS ENTITLED TO HAVE HIS UNLIQUIDATED ANNUAL LEAVE AND UNUSED SICK LEAVE RESTORED. IS NOT REEMPLOYED IN ACCORDANCE WITH THE SELECTIVE TRAINING AND SERVICE ACT OF 1940. AS COMPENSATION FOR ANNUAL LEAVE WHICH STOOD TO HIS CREDIT WHEN HE ENTERED THE ARMED FORCES AND WHICH HE HAS ELECTED TO HAVE REMAIN TO HIS CREDIT AS AUTHORIZED BY THE LATTER ACT. 1944: I HAVE YOUR LETTER OF NOVEMBER 10. AS FOLLOWS: THE DEPARTMENT REQUESTS YOUR DECISION ON SEVERAL MATTERS AFFECTING THE PAY OF INDIVIDUALS WHO LEFT CIVILIAN EMPLOYMENT TO ENTER THE ARMED FORCES OF THE UNITED STATES AND WHO ARE LATER RETURNED TO CIVILIAN EMPLOYMENT ALTHOUGH NOT IN THE POSITIONS WHICH THEY HELD PRIOR TO MILITARY FURLOUGH OR SEPARATION.

B-45646, NOVEMBER 24, 1944, 24 COMP. GEN. 410

OFFICERS AND EMPLOYEES - REEMPLOYMENT BENEFITS AFTER MILITARY DUTY; PAYMENT FOR CIVILIAN LEAVE AFTER MILITARY DUTY WHERE AN EMPLOYEE, WHO LEFT OTHER THAN A TEMPORARY POSITION TO ENTER THE ARMED FORCES, HAS MET ALL THE TERMS AND CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, ENTITLING HIM TO REEMPLOYMENT IN A CIVILIAN POSITION, AND HE ACTUALLY IS REEMPLOYED, EVEN THOUGH IN A DIFFERENT BRANCH OF THE DEPARTMENT OR AGENCY OR IN A DIFFERENT DEPARTMENT OR AGENCY FROM THE ONE HE LEFT TO ENTER THE ARMED FORCES, THE EMPLOYEE IS ENTITLED TO HAVE HIS UNLIQUIDATED ANNUAL LEAVE AND UNUSED SICK LEAVE RESTORED, AND TO COUNT SERVICE IN THE ARMED FORCES TOWARD AUTOMATIC PROMOTION UNDER THE ACT OF AUGUST 1, 1941. A FORMER EMPLOYEE WHO, AFTER SERVICE IN THE ARMED FORCES ENTERED UPON FROM A CIVILIAN POSITION WITHOUT BREAK IN SERVICE, IS NOT REEMPLOYED IN ACCORDANCE WITH THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, MAY FILE CLAIM IN THE GENERAL ACCOUNTING OFFICE FOR ANY AMOUNT BELIEVED DUE UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, AS COMPENSATION FOR ANNUAL LEAVE WHICH STOOD TO HIS CREDIT WHEN HE ENTERED THE ARMED FORCES AND WHICH HE HAS ELECTED TO HAVE REMAIN TO HIS CREDIT AS AUTHORIZED BY THE LATTER ACT; AND ANY SUCH CLAIM FILED WITH AN ADMINISTRATIVE OFFICE SHOULD BE FORWARDED TO THIS OFFICE FOR SETTLEMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, NOVEMBER 24, 1944:

I HAVE YOUR LETTER OF NOVEMBER 10, 1944, AS FOLLOWS:

THE DEPARTMENT REQUESTS YOUR DECISION ON SEVERAL MATTERS AFFECTING THE PAY OF INDIVIDUALS WHO LEFT CIVILIAN EMPLOYMENT TO ENTER THE ARMED FORCES OF THE UNITED STATES AND WHO ARE LATER RETURNED TO CIVILIAN EMPLOYMENT ALTHOUGH NOT IN THE POSITIONS WHICH THEY HELD PRIOR TO MILITARY FURLOUGH OR SEPARATION. THE CASE OF MR. LEE B. GOFF, JR., IS ONE THAT IS VERY MUCH IN POINT.

MR. GOFF WAS EMPLOYED AS A COMPANY COMMANDER IN THE CIVILIAN CONSERVATION CORPS, CAF-7, AT $3000 PER ANNUM. ON OCTOBER 22, 1940, MR. GOFF WAS FURLOUGHED FROM THE ABOVE POSITION IN ORDER TO PERFORM ACTIVE DUTY IN THE ARMY OF THE UNITED STATES. ON JULY 10, 1944, IN ANTICIPATION OF HIS FORTHCOMING RELIEF FROM ACTIVE DUTY, MR. GOFF MADE APPLICATION TO THE UNITED STATES CIVIL SERVICE COMMISSION FOR REEMPLOYMENT IN A POSITION OF LIKE SENIORITY, STATUS, AND PAY TO THAT HELD PRIOR TO HIS MILITARY SERVICE. HIS ACTION IN MAKING APPLICATION TO THE CIVIL SERVICE COMMISSION RATHER THAN TO THIS DEPARTMENT WAS PREDICATED ON THE FACT THAT THE CIVILIAN CONSERVATION CORPS HAD BEEN ABOLISHED DURING HIS ABSENCE. MR. GOFF WAS RELIEVED OF ACTIVE DUTY IN THE ARMY AIR FORCES ON JULY 20, 1944, AND, THROUGH THE EFFORTS OF THE CIVIL SERVICE COMMISSION, ENTERED INTO CIVILIAN EMPLOYMENT ON AUGUST 17, 1944, IN AN ARMY AIR FORCES INSTALLATION OF THIS DEPARTMENT. FROM THE INFORMATION WHICH IS AVAILABLE AT THIS TIME, IT APPEARS THAT HE HAS MET ALL OF THE REQUIREMENTS FOR REEMPLOYMENT UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, AS AMENDED, AND HIS RESTORATION WAS EFFECTED AS " RETURN FROM MILITARY FURLOUGH.'

MR. GOFF HAS NOW RAISED THE QUESTION AS TO THE EFFECT OF THIS ACTION ON HIS STATUS AS A CIVIL SERVICE EMPLOYEE AND THERE IS CLOSELY ALLIED WITH THIS QUESTION AN ADDITIONAL COMPLICATION OF HIS RIGHT TO HAVE ANY SICK OR ANNUAL LEAVE BALANCE RESTORED TO HIS CREDIT AND HIS RIGHT TO SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, ( PUBLIC LAW 200--- 77TH CONGRESS). THE QUESTION OF CIVIL SERVICE STATUS IS ONE THAT IS PROPERLY FOR CONSIDERATION BY THE CIVIL SERVICE COMMISSION AND IS BEING REFERRED TO THAT BODY FOR DECISION. YOUR ASSISTANCE IS REQUESTED. HOWEVER, WITH RESPECT TO THE PAY PROBLEMS INDICATED ABOVE IN THE LIGHT OF CIRCUMSTANCES WHICH HAVE BEEN ENCOUNTERED BY THIS DEPARTMENT.

SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, AS IT APPLIES TO THE FEDERAL GOVERNMENT, SEEMS TO INDICATE THAT THE UNITED STATES IS TO BE CONSIDERED AS A SINGLE EMPLOYER FOR THE PURPOSES OF THAT ACT. THIS CONCEPTION IS SOMEWHAT AT A VARIANCE WITH PAST PRACTICE SINCE, UNDER 5 U.S.C. 43, THE HEADS OF DEPARTMENTS AND THOSE PERSONS IN THE FIELD SERVICE WHOM THEY MIGHT DESIGNATE TO ACT FOR THEM HAVE BEEN CONSIDERED FOR MANY PURPOSES TO BE INDIVIDUAL EMPLOYERS. IF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT CONSIDERS THE FEDERAL GOVERNMENT TO BE A SINGLE EMPLOYER, IT WOULD APPEAR THAT AN EMPLOYEE MIGHT BE RESTORED TO ANY POSITION UNDER THE FEDERAL GOVERNMENT AND TO HAVE RESTORED TO HIM SICK AND ANNUAL LEAVE BALANCES AND SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941, UPON MEETING THE CONDITIONS FOR REEMPLOYMENT PRESCRIBED IN THE ACT. IT WOULD APPEAR THAT THIS QUESTION WILL BE PERTINENT IN A LARGE NUMBER OF CASES WHERE AN EMPLOYEE IS RESTORED TO DUTY IN A DIFFERENT DEPARTMENT FROM THAT IN WHICH THE POSITION HE LEFT IS LOCATED BUT IT WILL ALSO ARISE IN THOSE CIRCUMSTANCES WHERE THE HEADS OF DEPARTMENTS HAVE DELEGATED APPOINTING AUTHORITY TO FIELD OFFICERS AND THE EMPLOYEE IS REEMPLOYED IN A DIFFERENT FIELD ORGANIZATION UNDER THE SAME DEPARTMENT.

IN MR. GOFF'S CASE, HE WAS APPOINTED AND LATER FURLOUGHED PRIOR TO THE TIME WHEN FIELD OFFICERS OF THE WAR DEPARTMENT WERE DELEGATED GENERAL APPOINTING AUTHORITY. DURING THAT PERIOD ALL PERSONNEL ACTIONS REQUIRED THE PRIOR APPROVAL OR CONFIRMATION OF THE SECRETARY OF WAR. UNDER PRESENT PROCEDURES, HOWEVER, SUCH ACTIONS WITH CERTAIN NOTABLE EXCEPTIONS ARE TAKEN BY COMMANDING OFFICERS OF FIELD INSTALLATIONS. MR. GOFF WAS THEREFORE FURLOUGHED FROM A POSITION TO WHICH HE HAD BEEN APPOINTED BY THE SECRETARY OF WAR AND HE HAS BEEN REEMPLOYED THROUGH AN APPOINTMENT ACTION BY THE COMMANDING OFFICER OF THE PACIFIC OVERSEAS AIR SERVICE COMMAND.

IN THE LIGHT OF THE ABOVE FACTS, YOUR DECISION IS REQUESTED ON THE FOLLOWING POINTS:

A. MAY LEAVE AND WITHIN-GRADE SALARY ADVANCEMENT BENEFITS BE GRANTED TO AN EMPLOYEE WHO IS REEMPLOYED UNDER THE CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT BUT UNDER A DIFFERENT APPOINTING OFFICER OF THE SAME AGENCY?

B. MAY THE SAME BENEFITS BE GRANTED TO AN EMPLOYEE WHO IS REEMPLOYED UNDER THE SAME CONDITIONS BUT IN A DIFFERENT DEPARTMENT OR AGENCY UNDER THE FEDERAL GOVERNMENT?

IN THIS SAME CONNECTION, A FURTHER QUESTION HAS ARISEN AS TO THE PROPER METHOD OF HANDLING ANNUAL LEAVE BALANCES REMAINING TO AN EMPLOYEE'S CREDIT WHEN THE EMPLOYEE DOES NOT RETURN TO FEDERAL EMPLOYMENT OR WHEN HE FAILS TO MEET THE REEMPLOYMENT CRITERIA ESTABLISHED BY THE SELECTIVE TRAINING AND SERVICE ACT. SECTION 2.4 OF EXECUTIVE ORDER NO. 9414 DATED JANUARY 13, 1944, PROVIDES THAT "IN NO CASE, WHETHER THE SEPARATION BE VOLUNTARY OR INVOLUNTARY, SHALL THE SEPARATION BECOME EFFECTIVE ON A DATE PRIOR TO THE DATE OF TERMINATION OF SUCH LEAVE.' THE ACT OF APRIL 7, 1942 ( PUBLIC LAW 517--- 77TH CONGRESS) PERMITS AN EMPLOYEE ENTERING ON ACTIVE MILITARY OR NAVAL SERVICE TO RECEIVE COMPENSATION FOR ACCUMULATED OR CURRENT ACCRUED ANNUAL LEAVE OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM ACTIVE MILITARY OF NAVAL SERVICE. THE FOLLOWING QUESTIONS HAVE ARISEN IN THIS DEPARTMENT WITH RESPECT TO THE ABOVE PROVISIONS OF LAW AND REGULATION:

C. IN THOSE INSTANCES WHERE AN EMPLOYEE WHO HAS BEEN FURLOUGHED OR WHO HAS RESIGNED PERFORMED ACTIVE MILITARY OR NAVAL SERVICE MAKES APPLICATION FOR PAYMENT OF ACCUMULATED OR ACCRUED ANNUAL LEAVE WHICH HE HAS PREVIOUSLY ELECTED TO REMAIN TO HIS CREDIT, IS IT REQUIRED THAT SUCH APPLICATIONS BE FORWARDED TO THE GENERAL ACCOUNTING OFFICE FOR ADJUDICATION AS CLAIMS?

D. IF THE ANSWER TO C ABOVE IS IN THE NEGATIVE AND THE DEPARTMENT IS AUTHORIZED TO RESTORE SUCH EMPLOYEES TO ITS PAYROLLS FOR THE PURPOSE OF PAYING ANNUAL LEAVE BALANCES, IS IT NECESSARY THAT ACTION BE TAKEN TO AMEND THE ORIGINAL PERSONNEL ACTION TO EXTEND THE EFFECTIVE DATE FOR A PERIOD SUFFICIENT TO COVER THE AMOUNT OF LEAVE FOR WHICH PAYMENT IS MADE?

E. DOES THE ABOVE-QUOTED PORTION OF EXECUTIVE ORDER 9414 REQUIRE THAT AN EMPLOYEE BE PAID FOR ANY LEAVE BALANCE WHICH MAY HAVE REMAINED TO HIS CREDIT EVEN THOUGH HE HAS BEEN DISCHARGED FROM THE MILITARY OR NAVAL SERVICE AND HAS FAILED TO BE REEMPLOYED PURSUANT TO SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT?

IN VIEW OF THE FACT THAT INCREASING NUMBERS OF EMPLOYEES ARE RETURNING UNDER CIRCUMSTANCES SIMILAR TO THOSE DESCRIBED ABOVE, YOUR EARLY CONSIDERATION AND DECISION ON THESE QUESTIONS WILL BE APPRECIATED.

THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, AS AMENDED BY THE ACT OF JULY 28, 1942, 56 STAT. 724, RELATING TO REEMPLOYMENT BENEFITS, ARE AS FOLLOWS:

SEC. 8 (A)ANY PERSON INDUCTED INTO THE LAND OR NAVAL FORCES UNDER THIS ACT FOR TRAINING AND SERVICE, WHO, IN THE JUDGMENT OF THOSE IN AUTHORITY OVER HIM SATISFACTORILY COMPLETES HIS PERIOD OF TRAINING AND SERVICE UNDER SECTION 3 (B) SHALL BE ENTITLED TO A CERTIFICATE TO THAT EFFECT UPON THE COMPLETION OF SUCH PERIOD OF TRAINING AND SERVICE, WHICH SHALL INCLUDE A RECORD OF ANY SPECIAL PROFICIENCY OR MERIT ATTAINED. IN ADDITION, EACH SUCH PERSON WHO IS INDUCTED INTO THE LAND OR NAVAL FORCES UNDER THIS ACT FOR TRAINING AND SERVICE SHALL BE GIVEN A PHYSICAL EXAMINATION AT THE BEGINNING OF SUCH TRAINING AND SERVICE; AND UPON THE COMPLETION OF HIS PERIOD OF TRAINING AND SERVICE UNDER SECTION 3 (B), EACH SUCH PERSON SHALL BE GIVEN ANOTHER PHYSICAL EXAMINATION AND, UPON THE WRITTEN REQUEST OF THE PERSON CONCERNED, SHALL BE GIVEN A STATEMENT OF MEDICAL RECORD BY THE WAR DEPARTMENT: PROVIDED, THAT SUCH STATEMENT SHALL NOT CONTAIN ANY REFERENCE TO MENTAL OR OTHER CONDITIONS WHICH IN THE JUDGMENT OF THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY WOULD PROVE INJURIOUS TO THE PHYSICAL OR MENTAL HEALTH OF THE PERSON TO WHOM IT PERTAINS.

(B) IN THE CASE OF ANY SUCH PERSON WHO, IN ORDER TO PERFORM SUCH TRAINING AND SERVICE, HAS LEFT OR LEAVES A POSITION, OTHER THAN A TEMPORARY POSITION, IN THE EMPLOY OF ANY EMPLOYER AND WHO (1) RECEIVES SUCH CERTIFICATE, (2) IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION, AND (3) MAKES APPLICATION FOR REEMPLOYMENT WITHIN FORTY DAYS AFTER HE IS RELIEVED FROM SUCH TRAINING AND SERVICE---

(A) IF SUCH POSITION WAS IN THE EMPLOY OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA, SUCH PERSON SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY; * * * * * *

(C) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES, SHALL BE RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION.

SECTION 7 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 627, PROVIDES:

ANY PERSON WHO, SUBSEQUENT TO MAY 1, 1940, AND PRIOR TO THE TERMINATION OF THE AUTHORITY CONFERRED BY SECTION 2 OF THIS JOINT RESOLUTION, SHALL HAVE ENTERED UPON MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES SHALL BE ENTITLED TO ALL THE REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO THE SAME EXTENT AS IN THE CASE OF PERSONS INDUCTED UNDER SAID ACT: PROVIDED, THAT THE PROVISIONS OF SECTION 8 (B) (A) OF SAID ACT SHALL BE APPLICABLE TO ANY SUCH PERSON WITHOUT REGARD TO WHETHER THE POSITION WHICH HE HELD SHALL HAVE BEEN COVERED INTO THE CLASSIFIED CIVIL SERVICE DURING THE PERIOD OF HIS MILITARY OR NAVAL SERVICE.

SO FAR AS I AM AWARE NO DECISION HAS BEEN RENDERED BY COMPETENT AUTHORITY UPON THE QUESTION WHETHER THE UNITED STATES GOVERNMENT IS TO BE REGARDED AS A SINGLE EMPLOYER FOR THE PURPOSE OF THE ABOVE-QUOTED STATUTES. THIS OFFICE, OF COURSE, HAS NO JURISDICTION OR AUTHORITY TO RENDER A DECISION COMPELLING ANY APPOINTING AUTHORITY TO RESTORE A RETURNED VETERAN TO A CIVILIAN POSITION IN ANY BRANCH OF THE SERVICE REGARDLESS OF WHETHER THE POSITION FROM WHICH HE ENTERED THE ARMED FORCES HAS BEEN ABOLISHED, AND NOTHING HEREIN IS TO BE REGARDED AS PURPORTING TO DO SO. HOWEVER, AS THE SELECTIVE TRAINING AND SERVICE ACT, AS EXTENDED, SUPRA, CONTAINS NO PROVISION LIMITING REEMPLOYMENT BENEFITS TO RETURNED VETERANS WHO ARE RESTORED IN THE SAME DEPARTMENT OR AGENCY OF THE FEDERAL GOVERNMENT FROM WHICH THEY ENTERED THE ARMED FORCES, AND IN THE LIGHT OF THE PROVISIONS OF THE LEAVE LAWS AND REGULATIONS AND THE WITHIN-GRADE PROMOTIONS LAW ( ACT OF AUGUST 1, 1941, 55 STAT. 613) AND REGULATIONS ( EXECUTIVE ORDER NO. 882, DATED SEPTEMBER 3, 1941) GRANTING THE ACCRUAL OF BENEFITS REGARDLESS OF THE DEPARTMENT OR AGENCY, FALLING WITHIN THE PURVIEW OF THOSE LAWS AND REGULATIONS, IN WHICH EMPLOYED, IT IS CONCLUDED, SO FAR AS THE PRESENT MATTER IS CONCERNED, THAT A VETERAN WHO HELD "OTHER THAN A TEMPORARY POSITION" AND WHO HAS MET ALL THREE CONDITIONS PRESCRIBED BY LAW TO ENTITLE HIM TO RESTORATION TO A CIVILIAN POSITION AND WHO ACTUALLY IS RESTORED TO A POSITION IN A DIFFERENT BRANCH OF THE SAME DEPARTMENT OR AGENCY OR IN A DIFFERENT DEPARTMENT OR AGENCY THAN THE ONE FROM WHICH HE ENTERED THE ARMED FORCES, MAY HAVE RESTORED TO HIM AT SUCH TIME ALL UNLIQUIDATED ANNUAL LEAVE AND UNUSED SICK LEAVE, AND MAY COUNT SERVICE IN THE ARMED FORCES TOWARD AUTOMATIC PROMOTION. COMPARE 23 COMP. GEN. 832, AND DECISION OF NOVEMBER 6, 1944, B-45311, 24 COMP. GEN. 357. ACCORDINGLY, QUESTIONS A AND B ARE ANSWERED IN THE AFFIRMATIVE.

ANSWERS TO THE REMAINING QUESTIONS STATED IN YOUR LETTER ARE CONTROLLED NOT BY THE PROVISIONS OF SECTION 2.4 OF THE CURRENT LEAVE REGULATIONS, MENTIONED IN YOUR LETTER, BUT RATHER BY THE TERMS AND CONDITIONS OF THE ACT OF AUGUST 1, 1941, 55 STAT. 616, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200, PROVIDING: THAT EMPLOYEES OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING EMPLOYEES OF ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS WHOLLY CONTROLLED OR WHOLLY OWNED BY THE UNITED STATES GOVERNMENT, OR ANY CORPORATION, ALL THE STOCK OF WHICH IS OWNED OR CONTROLLED BY THE UNITED STATES GOVERNMENT, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), WHO, SUBSEQUENT TO MAY 1, 1940, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES BY VOLUNTARY ENLISTMENT OR OTHERWISE, SHALL BE ENTITLED TO RECEIVE, IN ADDITION TO THEIR MILITARY PAY, COMPENSATION IN THEIR CIVILIAN POSITIONS COVERING THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE, OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM THE ACTIVE MILITARY OR NAVAL SERVICE.

WERE IT NOT FOR THAT STATUTE AND THE SELECTIVE TRAINING AND SERVICE ACT, ENTRANCE INTO THE ACTIVE MILITARY OR NAVAL SERVICE AUTOMATICALLY WOULD HAVE DEFEATED THE RIGHT OF AN EMPLOYEE TO BE PAID FOR TERMINAL ANNUAL LEAVE IN A CIVILIAN POSITION, REGARDLESS OF SECTION 2.4 OF THE CURRENT LEAVE REGULATIONS, NOT ONLY BECAUSE OF THE DUAL COMPENSATION STATUTES, BUT ALSO PURSUANT TO THE GENERAL RULE OF LAW THAT CIVILIAN STATUS AND MILITARY STATUS DURING THE SAME PERIOD OF TIME IS INCOMPATIBLE. 3 COMP. GEN. 40: 18 ID. 213; 20 ID. 257; 22 ID. 127. THE RIGHT TO PAYMENT FOR ACCUMULATED OR CURRENT ACCRUED LEAVE VESTS IN AN EMPLOYEE UNDER THE STATUTE AT THE TIME HE ENTERS THE ARMED FORCES WITHOUT BREAK BETWEEN HIS CIVILIAN AND MILITARY SERVICE AND CONTINUES UNTIL HE IS RESTORED TO HIS FORMER CIVILIAN POSITION OR TO A CIVILIAN POSITION OF LIKE SENIORITY, STATUS, AND PAY, IT BEING PRESUMED THAT UPON RESTORATION HE HAS ELECTED TO HAVE THE LEAVE RESTORED TO HIS CREDIT. 21 COMP. GEN. 660; 22 ID. 546. HENCE, AN EMPLOYEE WHO IS NOT SO RESTORED MAY FILE CLAIM IN THIS OFFICE OVER HIS SIGNATURE FOR THE AMOUNT OF COMPENSATION BELIEVED TO BE DUE HIM UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, SUPRA. SEE 31 U.S.C. 71.

IN THE LIGHT OF THE FOREGOING, THEREFORE, QUESTION C IS ANSWERED IN THE AFFIRMATIVE. SEE 24 COMP. GEN. 9, ID. 39. THE ANSWER TO QUESTION C MAKES IT UNNECESSARY TO ANSWER QUESTION D.

REFERRING TO QUESTION C, AS ABOVE STATED SECTION 2.4 OF THE CURRENT LEAVE REGULATIONS IS NOT FOR APPLICATION, THAT IS, THE WAR DEPARTMENT IS NOT REQUIRED TO PAY A VETERAN WHO IS NOT RESTORED TO A CIVILIAN POSITION FOR THE ANNUAL LEAVE THAT STOOD TO HIS CREDIT WHEN HE ENTERED THE ARMED FORCES, BUT ANY CLAIM THEREFOR FILED BY THE VETERANS SHOULD BE FORWARDED TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT.